A federal judge dismissed the lawsuit of a 30-year-old man who claimed the image of him naked at the age of four months on the cover of Nirvana in 1991 It does not matter album is child pornography.
Judge Fernando M. Olguin on Monday allowed a motion to dismiss the prosecution of the accused, which include surviving Nirvana members Dave Grohl and Krist Novoselic and the Kurt Cobain estate, but left the door open for plaintiff Spencer Elden to file a new version.
The dismissal came after Elden’s lawyers failed to file opposition to the defendants’ motion to dismiss before the December 30 deadline. Lawyers declined to comment on Tuesday.
The lawsuit, filed in August in California federal court, said Elden suffered “lifelong damage” as the group and others took advantage of the ubiquitous image of him naked underwater appearing to swim after a dollar bill on a hook.
The dismissal motion filed on December 22 by Nirvana’s attorneys argued that the complaint was filed well beyond the 10-year statute of limitations of one of the laws used as a cause of action, and that a another law she cites was not promulgated until 2003 and was not retroactive.
The motion says the trial is “prima facie, not serious,” and Elden’s conduct reflects this.
“Elden has spent three decades enjoying his fame as a self-anointed ‘Nirvana Baby’,” the document said.
“He reconstituted the photograph in exchange for a royalty, several times; he got the album title It does not matter tattooed on his chest; he appeared on a talk show wearing a self-parodying nude-colored onesie; he signed copies of the album cover for sale on eBay; and he used the connection to try to pick up women. “
Applicant can file amended complaint
The judge has given Elden’s lawyers until Jan. 27 to file an amended complaint that addresses the issues raised in the defendants’ motion, or the lawsuit will be dismissed on a more final basis.
One of Elden’s attorneys, Maggie Mabie, told The Associated Press in August that he filed a lawsuit when he did because he “finally had the courage to ask for accounts to these actors “.
Mabie said that although the photo is 30 years old, the trial was within the statute of limitations under federal child pornography law for several reasons, including the fact that the image is still in circulation and is making money.
LISTEN | Photographer Kirk Weddle on the set of the iconic Nirvana album cover art:
Q5:53Nevermind at 25: Kirk Weddle on the set of Nirvana’s iconic album cover
Photographer Kirk Weddle had just started his career and had never even heard of Nirvana when he shot the cover of their iconic album. 5:53
The lawsuit claimed at least US $ 150,000 from each of the more than a dozen defendants, including the record companies involved in the release and re-release of. It does not matter, and cover photographer Kirk Weddle.
Elden’s dad was a friend of Weddle’s, who took photos of several baby swimmers in multiple scenarios at the Rose Bowl Aquatic Center in Pasadena, Calif.
When the photo was taken, Nirvana were a little-known band who had no idea they were making a generation-to-generation album. It does not matter, their first release on a major label, whose songs included Smells like Teen Spirit, Come as you are and Lithium. Cobain died in 1994.
The Associated Press does not usually name people who say they have been sexually abused, but can when they have come forward publicly on multiple occasions, as Elden did.